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Court of Criminal Appeal 2 November 2020

AH v R

[2020] NSWCCA 279

Sexual offences
CRIME APPEALS APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: AH v R [2020] NSWCCA 279
Court: NSW Court of Criminal Appeal
Date: 2 November 2020
Judge(s): Macfarlan JA, Fullerton J, Button J

Background

The appellant pleaded guilty in the District Court in August 2019 to 20 counts of serious sexual offending against two child complainants. The offences, committed across approximately 12 months in 2006, included aggravated sexual intercourse, aggravated indecent assault, inciting acts of indecency, using a child for pornographic purposes, and producing child pornography. The sentencing judge imposed an aggregate term of 12 years' imprisonment with a non-parole period of 8 years, backdated to April 2015.

The proceedings had a lengthy and complex history. The appellant had been before courts in both the ACT and NSW for related and overlapping offending, with significant delays before the NSW matters were brought to finality. He had been in continuous custody for nearly a decade by the time of resentencing on appeal.

The appellant sought leave to appeal the aggregate sentence on the grounds that the sentencing judge failed to give adequate weight to mitigating factors, that the sentence breached the totality principle, and that it was manifestly excessive.

  • Whether the sentencing judge failed to take into account, properly or at all, relevant mitigating factors in the applicant's subjective case
  • Whether the aggregate sentence breached the totality principle by being disproportionate to the overall criminality
  • Whether the aggregate sentence was manifestly excessive

Decision

The Court of Criminal Appeal granted leave to appeal and upheld the appeal, finding that the aggregate sentence was excessive when the full weight of the appellant's subjective case was properly considered. Fullerton J, with whom Macfarlan JA and Button J agreed, declined to disturb any of the 20 indicative sentences imposed for individual counts, nor the sentencing judge's assessments of the objective seriousness of each offence.

The objective gravity of the total criminality was described as not able to be understated. The offending reflected a sustained pattern of abuse involving the deliberate cultivation of trust with the victims' family, which progressively normalised highly aberrant conduct toward both complainants, particularly the primary victim.

On the subjective side, the Court accepted that meaningful weight was warranted for the appellant's genuine remorse and commitment to rehabilitation. Critically, the Court took into account that the appellant had been in continuous custody for almost ten years, that he was a relatively young man at the time of resentencing, and that his own history as a troubled and traumatised victim of sexual abuse during his youth was a significant mitigating consideration. The passage of 12 months since the District Court sentence, without evidence of any setback in rehabilitation, further supported a modest reduction.

Balancing the gravity of the total offending against the strength of the subjective case on resentence, the Court concluded that an aggregate sentence of 11 years with a non-parole period of 7 years was appropriate.

Orders Made

  • Leave to appeal granted
  • Appeal against sentence upheld
  • Aggregate sentence imposed in the District Court on 6 September 2019 quashed
  • In lieu, an aggregate sentence of 11 years' imprisonment imposed, commencing 9 April 2015 and expiring 8 April 2026, with a non-parole period of 7 years expiring 8 April 2022

Key Takeaways

  • The Court of Criminal Appeal confirmed that indicative sentences for individual counts in a multi-count matter may be left undisturbed even where the aggregate sentence is found to be excessive; it is the overall sentence that may require adjustment to reflect proper totality.
  • Where an offender has been in continuous custody for a prolonged period arising from related proceedings in multiple jurisdictions, that circumstance can carry appreciable weight in the resentencing exercise.
  • An offender's own history as a victim of sexual abuse during childhood, while not diminishing the gravity of later offending, is a recognised mitigating factor relevant to the sentencing assessment.
  • Demonstrated progress in rehabilitation, including the absence of internal disciplinary action and consistent engagement with rehabilitative programs, can attract weight even where the risk of reoffending is assessed in guarded terms.
  • The objective seriousness of a sustained pattern of child sexual abuse, involving grooming, physical contact, and the production of child exploitation material, sits at the higher end of the sentencing spectrum and limits the extent to which subjective factors can moderate the overall sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): ss 61M(1), 61O(1), 66C(2), 91G(1)(a), 91H(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW): s 5(1)(c)

Cases
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Imbornone v R [2017] NSWCCA 144
- Kentwell v The Queen (2014) 88 ALJR 947; [2014] HCA 37
- Porter v R [2019] NSWCCA 117